How the Israeli justice system has become a strong, unsupervised, political body, that is not held responsible for the consequences of its decisions and why this situation endangers the future and existence of the State of Israel.
By Prof. Elisha Haas, former chair of Professors for a strong Israel
A Jewish state is, by definition, an unusual body among states. Its existence is contrary to natural geopolitical conduct; therefore, its existence arouses forces acting both internally and externally to do away with its uniqueness or its very existence. Therefore, there will always be within her and in the environment, tension between the natural aspiration for normalization and the unnatural aspiration for uniqueness, according to Jewish tradition. This is the source of the abiding existential danger that lurks for the Jewish state.
This tension erupted with great intensity in the year 1977, due to the general passing of the generation on one hand, and on the other, the reverberation from the Yom Kippur War, which crushed the Zionist Left’s vision and gave rise to the post-Zionist Left. In 1981, a right-wing government came to power again. The Left concluded that 1977 was not an accident, but reflected a profound change in the public and that it would be difficult to return to power democratically. Therefore, there was no choice but to act in ways to circumvent democracy.
The New Israel Fund was created, whose main goal is to eliminate the Jewish state (to turn it into a “state of all its citizens”) and it focused on methodical, long-range penetration of the justice system. The plan to eliminate the Jewish state was aided by the right-wing politicians’ lack of awareness and when Prof. Aharon Barak was admitted to the High Court, he considered himself the Left’s emissary in the circumvention.
In the first generation of the state it was acceptable for the High Court, which is a court of appeals, could also sit as the High Court of Justice, whose sole function is to give support to the private citizen who was suffering from the government’s arbitrary behavior. This is the “right of standing”, which is limited to the private citizen. Aharon Barak, acting very wisely and patiently, step by step, turned the High Court of Justice into a tool of power and political actor, not subject to public scrutiny and bearing no responsibility for the results of its decisions. In the first phase, he abolished the restrictions on the “right of status” and invited any organization or citizen to request involvement in the decisions of any body in the state. Gradually, Barack and his judicial clones repealed laws, determined de facto what was legal and what was not legal, repeatedly ignoring explicit laws (that is, they openly broke the law in the name of “the rule of law”), emptied laws of their content, invented “reasonability” tests in order to interfere in every public and private matter, illegally. They lorded the ideology of “the enlightened man” over the public.
They were aided by three factors: 1. The unique method of judicial appointment, where judges control the appointment of judges, which made possible the “cloning” process. 2. The awe and negligence on the part of politicians who were afraid of harming the court, exploited its undeserved immunity to the nth degree, which it retained thanks to the merit of the first generation, and 3. Barak enacted most of these precedents by harming only the haredi public, so that the general public did not feel harmed and paid no attention to the seriousness of the precedents.
The result: in the 72nd year of its existence, the Jewish state has lost the title “democratic”, because a group of appointed judges who could not pass the public scrutiny broke the boundaries of the separation of powers and imposed their political ideology to the public without taking any responsibility at all. The court dragged us into elections by overturning the Tal Law, and the heavy cloud that was created over the judicial executive branches paralyzes the systems without even touching them.
By the very fact that they meet to discuss the appeals that undermine the ability of the person elected by the public to serve as prime minister or as minister, the judges do away with the essence of democracy, in which the people are the sovereign and they are their servants, not their masters (regardless of the decision, which is affected, in any case, by political considerations). The moment that they did not immediately reject the appeals that were served before the 72nd Independence Day, the judges revealed the dangerous situation into which they have drawn the Jewish democratic state.
This is a most dangerous situation because actually, the power of the public to decide fateful matters for the existence of the Jewish state is nullified. Their involvement in the existential debate between the Zionist Right and the post-Zionist Left, which is a great step in the path of circumventing democracy, endangers the ability of the Jewish public to protect the existence of the Zionist project, which is under constant danger by opposing forces.
A Jewish state is not a natural entity, so it is in danger of being destroyed by opposing forces, from within and without. Therefore, there is no choice but to rectify the crazy situation that we have come to as a result of the long process that began in 1983. The public must demand that its political representatives totally rectify the situation: 1. Change the method of appointing judges, by passing the selection to elected representatives only. 2. Renew the separation of powers by legislation restricting the court. 3. Enact a law to limit the right of standing. 4. Meanwhile, to not obey political decisions of the court.
The court “has no wallet and no sword”. Its entire power is built on the public’s trust and compliance with its decisions. The public’s trust has eroded. In such a situation, if the court does not return to the boundaries from the era before the regime change led by Aharon Barak, the politicians must act immediately with disobedience followed by legislation. Since the entire power of the court is in speech alone, it also knows how to recognize when it is facing a resolute power and it will know how to retreat, so that it will be possible to have an effect even without actual disobedience. Aharon Barak himself, when he understood that he went too far in allowing the import of pork, suggested to the Knesset to enact a law to nullify his own decision.
The Zionist public must declare to its elected representatives that only someone who commits himself to enact laws restricting the High Court will get their support. We must call on our present representatives to stop obeying the court and stop honoring black-caped politicians, thus restraining them.